Citation Nr: 0634750
Decision Date: 11/09/06 Archive Date: 11/27/06
DOCKET NO. 04-36 622 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon
THE ISSUES
1. Entitlement to an initial rating in excess of 60 percent
prior to March 25, 2003, for coronary artery disease status
post myocardial infarction with stent implacement.
2. Whether a June 19, 2001, statement was a valid notice of
disagreement (NOD) regarding failure to adjudicate and
mischaracterized issues.
3. Entitlement to a total disability rating based on
individual unemployability (TDIU) prior to March 25, 2003.
ATTORNEY FOR THE BOARD
C. Shonk, Associate Counsel
INTRODUCTION
The veteran served on active duty from January 1968 to June
1968.
This matter comes to the Board of Veterans' Appeals (Board)
from rating decisions of the Department of Veterans Affairs
(VA) Regional Offices (RO) in Phoenix, Arizona, and then
Portland, Oregon.
During the pendency of this appeal VA sent the veteran a June
2006 letter advising him that his representative, Richard A.
LaPointe, Attorney-at-Law, had retired. Thus, the veteran
replied that in lieu of appointing another representative, he
wished to represent himself.
The issues of a rating in excess of 60 percent prior to March
25, 2003, for coronary artery disease and entitlement to a
TDIU prior to March 25, 2003, are addressed in the REMAND
portion of the decision below and are REMANDED to the RO via
the Appeals Management Center (AMC), in Washington, DC.
FINDING OF FACT
A June 2001 statement from the veteran's then-attorney
disagreed specifically with only two issues that had actually
been subject to a prior adjudication; other matters
concerning a failure to adjudicate and mischaracterized
issues were not part of any prior adjudication.
CONCLUSION OF LAW
A June 2001 filing cannot be considered a valid NOD for
issues regarding failure to adjudicate and mischaracterized
issues. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.201
(2006).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§
5100, 5102, 5103, 5103A, 5106, 5107, 5126, does not apply to
the pending issue of regulatory interpretation. See Mason v.
Principi, 16 Vet. App. 129, 132 (2002).
As described further below, a May 2001 rating decision
addressed only two claims: Entitlement to a higher rating
for coronary artery disease, and entitlement to service
connection for chronic emphysema.
The veteran's then-representative filed a June 2001 NOD that
sought a rating in excess of 60 percent for coronary artery
disease. Also, the June 2001 filing stated as follows:
"The veteran disagrees with all adjudicative determinations
mentioned in this decision and any enclosures thereto. The
veteran also disagrees with the Regional Office's failure to
adjudicate issues and claims it was required to adjudicate.
The veteran is specifically referring to issues that may not
have been discussed but where were reasonably raised by the
evidence in his VA claims file or in the VA's possession that
should have been inferred by the Regional Office." Finally,
the June 2001 statement noted that "this appeal includes
adjudicative determinations that were mischaracterized by the
Regional Office."
The record contains an April 2003 deferred rating decision
that recited the preceding contentions, and determined that
the veteran and his attorney should be informed the June 2001
statement could not be accepted as a NOD for issues that the
RO failed to adjudicate because a NOD could not be accepted
for decisions that had not been made. Also, the RO stated
that although the veteran's then-representative disagreed
with decisions that were "mischaracterized," the statement
could not be accepted as a valid NOD as it was too vague.
As such, the RO issued a May 2003 letter parlaying the
preceding information, and informed the veteran that the June
2001 NOD had been accepted for only the two issues that had
actually been considered in the May 2001 rating decision (an
increased rating and claim of service connection).
In response, the representative sent in a May 2003 NOD
concerning the latter letter, and RO issued a September 2004
statement of the case on the matter. In an October 2004 VA
Form 9, the representative stated that the June 2001 NOD had
been proper in all respects and the points raised in the
statement of the case had no merit.
Under 38 C.F.R. § 20.201, a notice of disagreement is defined
as a written communication from a claimant and his or her
representative expressing dissatisfaction or disagreement
with an adjudicative determination by the agency of original
jurisdiction and a desire to contest the result. (Emphasis
added.) While special wording is not required, the NOD must
be in terms which can be reasonably construed as a
disagreement with that determination and a desire for
appellate review.
Given the plain language of this regulation, the June 2001
filing cannot be considered a valid NOD for issues regarding
failure to adjudicate and mischaracterized issues, because
neither of these issues were subject to a prior
"adjudicative determination." If the veteran's then-
representative had wished the RO to adjudicate some
unaddressed claim, or re-characterize some issue, he could
have specified the perceived error. Allegations of "failure
to adjudicate" and "mischaracterized issues" are so vague,
however, that VA had no duty to act further upon them. Cf.
Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding that
VA's duty to assist "is not always a one-way street. If a
veteran wishes help, he cannot passively wait for it.").
It is noted that in Norris v. West, 12 Vet. App. 413, 420
(1999), the Court held VA had a duty to "fully and
sympathetically" develop a veteran's claim. The Norris
case, however, dealt with whether a veteran had filed an
informal claim for a TDIU, and the veteran made specific
arguments related thereto. Given that the veteran in this
case had been then-represented by a private attorney, it
behooved the attorney to, at the very least, point to some
particular error on VA's part in either ignoring or
mischaracterizing a claim, which he failed to do.
ORDER
A June 2001 filing cannot be considered a valid NOD only for
issues regarding failure to adjudicate and mischaracterized
issues, and the appeal is denied to this extent.
REMAND
As explained herein, the remaining issues must be remanded
for compliance with VA's duty to notify the veteran of
relevant information, and other procedural considerations.
The record contains a June 2000 rating decision that granted
service connection for nicotine dependence and coronary
artery disease secondary to nicotine addiction. The RO found
a prior January 1999 rating decision, which had originally
denied the benefit, contained clear and unmistakable error
because the veteran's claim was received prior to a change in
law. Thus, the June 2000 rating decision assigned a 0
percent disability evaluation for service-connected nicotine
dependence effective March 17, 1998, and a 10 percent
disability evaluation for service-connected coronary artery
disease, post myocardial infarction, stent implacement. The
decision noted that a VA examination would be scheduled to
determine the veteran's METs, and the examination occurred in
August 2000.
The veteran submitted a November 2000 VA Form 21-4138 that
described his various medical problems including congestive
heart failure. Also, the veteran included a disability
certification from Don H. Carlson, D.O., who remarked that
the chronic emphysema was secondary to years of heavy
smoking. Thereafter, a May 2001 rating decision assigned a
60 percent rating for coronary artery disease status post
myocardial infarction effective March 18, 1998; the RO noted
that the effective date was the date of initial entitlement
because the claim had been in "continuous prosecution."
Thus, the Board has determined that the issue on appeal
concerns an initial disability rating. See Fenderson v.
West, 12 Vet. App. 119, 125-26 (1999) (holding that at the
time of an initial award, separate ratings can be assigned
for separate periods of time based on the facts found, a
practice known as "staged" ratings).
Additionally, the May 2001 rating decision continued to deny
a claim of service connection for chronic emphysema (which
had originally been denied as not well-grounded in April
1999).
In June 2001, the veteran's then-representative filed a NOD
concerning the 60 percent rating, and concurrently filed a
claim for a TDIU. The RO also accepted the latter filing as
a NOD concerning the denial of service connection for chronic
emphysema.
In March 2003, the veteran underwent a VA examination
concerning the current severity of his coronary artery
disease, and an April 2003 rating decision granted a 100
percent disability rating effective March 25, 2003, the date
of VA examination. Also, the RO stated that as it had
granted a schedular 100 percent evaluation for the veteran's
heart condition, the issue of a TDIU was rendered moot.
In May 2003, the RO issued a statement of the case concerning
service connection for a lung condition noted as chronic
obstructive pulmonary disease and emphysema, and it appears
that a substantive appeal was not perfected therefrom.
In May 2003, the veteran's then-representative filed a NOD
concerning the TDIU claim and contended that it should have
been adjudicated prior to March 25, 2003, when the schedular
for service-connected coronary artery disease was less than
100 percent. The NOD also continued to assert that the
veteran was entitled to a rating in excess of 60 percent
prior to March 25, 2003.
In September 2004, the RO issued a statement of the case that
addressed only the issues one and two on the cover page of
this decision. Thus, the matter of entitlement to a TDIU
prior to March 25, 2003, must be remanded for issuance of a
statement of the case. Manlincon v. West, 12 Vet. App. 238
(1999).
Additionally, because the matter of a rating in excess of 60
percent prior to March 25, 2003, is subject to Fenderson
considerations, the recent case of Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006), is particularly relevant,
and the record does not show the veteran has received
sufficient notification of downstream elements of a
disability rating and effective date. Moreover, it does not
appear that the veteran has otherwise been sufficiently
notified of the VCAA for this issue, and thus, a final
decision would not be appropriate without such notice.
Accordingly, the case is REMANDED for the following action:
1. The RO should send the veteran a VCAA
notification letter that complies with
Dingess/Hartman v. Nicholson, 19 Vet. App.
473 (2006), such that the letter includes
information concerning a disability rating
and an effective date for the award of
benefits. The letter should provide
information concerning which evidence VA
will obtain, and which evidence the
veteran is to provide. The letter should
also tell the veteran to provide any
evidence in his possession that pertains
to the claim.
2. The RO should obtain any outstanding
VA treatment records from the Tucson VA
Medical Center including prior to 2000, as
well as any outstanding treatment records
from the Portland VA Medical Center.
3. The RO should issue a SOC concerning
the matter of entitlement to a TDIU prior
to March 25, 2003. If an appeal is
properly perfected, the case should be
returned to the Board.
4. After any indicated development, the
RO should readjudicate the veteran's
claim for an initial rating in excess of
60 percent prior to March 25, 2003, for
coronary artery disease status post
myocardial infarction with stent
implacement. If the determination of
the claim remains unfavorable to the
veteran, the RO must issue a
supplemental statement of the case and
provide him a reasonable period of time
to respond before this case is returned
to the Board.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
______________________________________________
JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs